Himachal Pradesh High Court
Sh. Saras Ram vs Sh. Bhagat Ram on 17 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Civil Revision No.95 of 2009
Date of Decision : 17.5.2016
.
Sh. Saras Ram ....Petitioner.
Versus
Sh. Bhagat Ram ...Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 No.
of
For the Petitioner : Mr. Nimish Gupta, Advocate.
For the Respondent : Mr. N.K.Thakur, Senior Advocate, with
rt Ms. Jamuna, Advocate.
Sandeep Sharma, Judge (Oral)
Present revision petition is preferred by the petitioner against the order dated 23.4.2009, passed by learned Civil Judge (Senior Division) Chamba, District Chamba, H.P in execution Petition No.112/2006, whereby the execution petition filed by the petitioner has been dismissed.
2. Briefly stated facts of the case are that the petitioner filed a suit for permanent prohibitory and mandatory injunction restraining the defendant( in short "respondent') from causing mischief or nuisance by discharging the dirty and filthy water of his house towards the house and shop of plaintiff( in short " petitioner") comprised in khasra No. 631/2, measuring 0-2 bighas and khasra No. 1148/630/1, measuring 0- 1 bighas situated in mohal Tiyari, Pargna Jundh, Tehsil Salooni, Whether reporters of the local papers may be allowed to see the judgment?
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District Chamba (in short " suit land").The learned trial Court decreed the suit of the plaintiff for permanent prohibitory .
injunction restraining the defendant from causing any mischief or nuisance by discharging dirty water over the lintel of house of the plaintiff comprised in khasra No. 631/2, measuring 0-2 bighas and khasra No. 1148/630/1, measuring 0-1 bighas situated in mohal Tiyari, Pargna Jundh, Tehsil Salooni, District of Chamba H.P., however, prayer for mandatory injunction was dismissed.
3. rtFeeling aggrieved with the aforesaid judgment and decree passed by learned trial Court, respondent filed an appeal under Section 96 of the Code of Civil Procedure in the Court of learned District Judge, Chamba and learned District Judge, Champa vide impugned judgment dated 30.8.2006, dismissed the appeal. However, the learned lower Appellate Court while dismissing the appeal recorded the findings that "the respondent/plaintiff counsel has agreed at the bar that the respondent has no objection, if the appellant/defendant lays underground pipe for the discharge of his kitchen or rainy water through his land at his own expenses", meaning thereby the present respondent had agreed that he has no objection in case, the respondent lays underground pipe for discharge of his kitchen water through his land on his own expenses.
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4. Thereafter, the present petitioner filed an application under Order 21 Rule 32 CPC, praying therein that .
the respondent may be punished by detaining him in civil imprisonment and for the attachment of the suit land comprised in khata/khatauni No.10/12, Khasra No.479,521, measuring 0-12-00 bighas situated at Mohal Tiyari Pargna Jundh, Tehsil Salooni, District Chamba for non-compliance of of the judgment and decree passed by the learned trial Court, whereby respondent was restrained from discharging the dirty rt water towards the lintel of the house of the petitioner. The present petitioner specifically averred in the application filed under Order 21 Rule 32 CPC that the respondent disobeyed the decree passed by the Court and till date flouting the directions contained in the judgment and decree dated 20.1.2006, passed by learned trial Court. He also averred that on his request, spot was inspected by the Gram Panchayat but despite the request of Panchayat, respondent kept on discharging filthy and dirty water towards the house of the petitioner and, as such, he was compelled/forced to file instant application under Order 21 Rule 32 CPC. By way of application under Order 21 Rule 32 CPC, the petitioner made following averments:-
" That the JD have an opportunity of obeying the decree of Learned Civil Judge, Senior Division, ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...4...
Chamba and have willfully failed to obey it and still causing mischief or nuisance by discharging the dirty and filthy water of his house towards the lintel .
of house of Decree Holder/applicant despite the resistance of decree holder/applicant and this repetition amounts to clear invasion upon the rights of decree holder and JD has disobeyed the decree of Hon'ble Court".
of "That even having given sufficient time to JD/respondent, he has adamant and the applicant approached the Gram Panchayat Thakri Matti. The rtspot was inspected by the Gram Panchayat but despite the request of Panchyat respondent totally refused to abstain from discharging dirty and filthy water towards the property/house of Decree Holder/applicant on 13.5.2007. The report of panchayat is attached herewith".
5. Respondent by way of reply to the application refuted the allegation of non-compliance leveled by the petitioner. In para 3 of the reply the respondent submitted that as per undertaking before the learned District Judge, Chamba, as find mentioned in para No.28 of the judgment dated 30.8.2006 that he has laid down the underground pipe for the discharge of his kitchen and rain water through his own land at his own expenses and the pipe has been connected into the PWD drain. He prayed that the present execution petition filed by the petitioner is not maintainable in view of the fact that ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...5...
judgment passed by learned trial Court has been complied with time in its letter and spirit. He also placed on record the report .
of Pradhan, Gram Panchayat, Thakari Matti dated 27.08.2007 in support of his reply. Record further reveals that the petitioner filed replication to the reply filed by the respondent, whereby in para No.3 petitioner reiterated that the respondent has willfully failed to obey and comply with the judgment and of decree dated 20.1.2006 and reiterated the stand taken in the execution petition referred hereinabove. The learned trial Court rt after appreciating the evidence on record, dismissed the execution petition filed by the present petitioner holding that the respondent has not willfully disobeyed the judgment and decree passed by the learned trial Court against him.
6. Feeling aggrieved and dissatisfied with the impugned order dated 23.4.2009, passed by the learned trial Court, present petitioner filed the present civil Revision under Section 115 of the Code of Civil Procedure.
7. I have heard the learned counsel for the parties and have also gone through the record carefully.
8. Mr. Nimish Gupta, learned counsel, appearing on behalf of the petitioner stated that the impugned order passed by the executing Court is not sustainable in the eye of law as same is not based upon the correct appreciation of evidence available on record. He forcibly contented that the learned ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...6...
executing Court has rejected the application under Order 21 Rule 32 CPC filed by the petitioner on hyper-technical grounds .
and learned Court below while passing the impugned order has completely misconstrued and misinterpreted the evidence and material placed on record. During arguments, he invited the attention of this Court to the statements made by the witnesses produced by him as well as by the defendant to of substantiate his arguments.
9. Mr. Gupta, learned counsel strenuously argued that rt the respondent in his cross-examination admitted that still dirty water flows towards the shop of the petitioner, which clearly suggest that he is disobeying the judgment and decree passed by the learned trial Court. Mr. Gupta, stated that though respondent has laid pipes over the land of the petitioner but the same have been left open and no arrangement has been made to connect the same with PWD drain. He further stated that on the application Ex.DH/1 moved by the petitioner, Pradhan, Gram Panchayat, inspected the spot and found that dirty water is flowing in front of the shop of the petitioner. He prayed that the impugned order passed by the learned trial court be quashed and set-aside and respondent be directed to comply with the judgment and decree passed by both the Courts below.
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10. Mr. N.K.Thakur, learned Senior Advocate, supported the impugned order passed by the learned trial Court in the .
execution petition. Mr. Thakur, forcibly contended that the bare perusal of the impugned order, passed by the learned trial Court suggest that the same is based upon the proper evidence on record, be it ocular or documentary. He stated that after passing of the impugned judgment dated, 30.8.2006, passed of by learned District Judge, Chamba, respondent laid down underground pipes for the discharge of dirty and rainy water, rt which fact is evident from Ex.RA i.e report of the Pradhan Gram Panchayat, where he categorically stated that respondent has laid pipes as per the order of the learned District Judge. During making his submission, he invited the attention of the Court to the statements given by AW-1, Saras Ram, AW-2, Amar Chand, AW-3, Tilak Raj and AW-4, Raj Singh and submitted that all these applicant/petitoner witnesses in their cross-examination have admitted that the respondent has laid down the pipes in terms of the judgment and decree passed by the learned District Judge.
11. Mr. Thakur, forcibly contended that this Court while exercising his revisionary jurisdiction has very limited power to re-appreciate the evidence available on record, this Court cannot interfere in the present facts and circumstances of the case, unless, it is proved that the impugned order is perverse ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...8...
and totally contrary to the evidence available on record. He prayed that there is no illegality and infirmity in the impugned .
order passed by the learned trial court and the same deserves to be up held.
12. True, it is that while exercising revisionary jurisdiction this Court is very limited power to re-appreciate the evidence available on record. But the Court solely with a view of to ascertain that the judgment passed by learned Court below is not perverse and same is based on correct appreciation of rt material available on record, this Court undertook an exercise to critically examine the evidence available on record.
13. Admittedly, vide impugned judgment dated 30.8.2006, passed by learned District Judge, Chamba, the present petitioner had agreed that he has no objection, if the respondent lays underground pipes for discharging of his kitchen or rainy water through his land at his own expenses.
From the aforesaid undertaking given by the present petitioner, it can be safely inferred that in the event of laying underground pipes by the respondent for the discharge of his kitchen and rainy water through his land, petitioner would be satisfied.
14. By way of present application, petitioner has alleged that despite there being specific direction contained in the impugned judgment dated 20.1.2006, respondent has not ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...9...
stopped from discharging dirty and filthy water towards the lintel of his house. On this assertion, applicant/petitioner .
examined himself as AW-1, AW-2, Amar Chand, Pradhan, Gram Panchayat, AW-3, Tilak Raj and AW-4 Sh. Raj Singh. Perusal of the statement given by the petitioner himself suggest that admittedly respondent had laid pipes on his own expenses for discharging kitchen and rainy water in compliance of the of impugned judgment passed by the learned District Judge. In his statement, it has come that at his behest Pradhan had visited rt the spot. AW-2, Sh. Amar Chand, Pradhan also stated in his cross-examination that on 13.5.2007, he visited the spot along with Tilak Raj and petitioner. He admitted that the report Ex.DH-1 bears his signature. He also admitted that the report Ex. RA was written by him and bears his signature. He categorically stated in his cross-examination that when he visited the spot on 27.8.2007, respondent Bhagat Ram had laid down pipes, however, he said that he had not laid pipes in proper manner. AW-3, Tilak Raj also admitted in his cross-
examination that respondent Bhagat Ram has laid pipes for the discharge of kitchen and bath room water. However, he self stated that he has not seen the pipes.
15. Perusal of Ex.DH-1, suggest that respondent did not comply with the judgment and decree passed by the learned District Judge, Chamba. Perusal of this document ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...10...
suggest that Pradhan visited the spot and recorded his finding at the bottom of this Ex.DH-1 and reported that respondent is .
not ready to amicably solve the matter and he has refused to stop the discharging water, rather, he has constructed stair at the spot.
16. RW-1, Bhagat Ram respondent in his statement stated that it is wrong to suggest that he has discharged dirty of and filthy water on the lintel of the shop of the petitioner. In his cross-examination, he stated that he had laid pipes in his own rt land at his own expenses. He also stated that the petitioner had no right to uproot those pipes, which he had laid for the discharge of dirty water. He also tendered in evidence report Ex.RA, dated 27.8.2007 submitted by Sh. Amar Chand, Pradhan. Perusal of Ex.RA, suggest that said Sh. Amar Chand had visited the spot and found that the respondent had laid down the pipes for the discharge of dirty water of kitchen and connected the same to drain constructed by PWD. It also emerges from the perusal of the report Ex. RA that present petitioner was not satisfied with the aforesaid laying pipes by the respondent.
17. From the conjoint reading of the evidence available on record, be it ocular or documentary, one thing clearly emerges that respondent had/have laid down the pipes in terms of the impugned judgment passed by the learned District ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...11...
Judge, Chamba for the discharge of the dirty and filthy water, because even the witnesses produced by the petitioner in .
support of his contention admitted that pipes have been laid down by the respondent. Rather, AW-2, Pradhan, who was brought to the witness box by the petitioner categorically, deposed that Ex.RA stands duly proved on record that he visited the spot and found that the respondent has laid down of the pipes for the discharge of dirty and filthy water. Even AW-3, Tilak Raj, in his cross-examination admitted that the rt respondent has laid down the pipes for the discharge of dirty water.
18. Perusal of Ex. RA, clearly suggests that though pipes have been laid down by the respondent, as was agreed by him at the time of passing of the impugned judgment dated 30.8.2006 passed by learned District Judge but it appears that present petitioner is not satisfied with the same. I had an occasion to see photographs, which were tendered in evidence before the learned trial court, perusal whereof suggests that the pipes laid down by respondent has been left open at the level of lintel of the shop of the petitioner. One thing, which clearly emerges from the material available on record that the respondent has actually complied with the judgment and decree passed by learned lower appellate Court by laying down the pipes. But it is different matter that petitioner is not ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...12...
satisfied with manner in which pipes have been laid down. It has specifically submitted by the respondent in his statement .
that he laid down the pipes but the same were uprooted by the petitioner.
19. Mr. Thakur, learned Senior Counsel, forcibly contended that the respondent had laid down the pipes till the level of drain constructed by the PWD, which passes from the of front of the shop of the petitioner. Mr. Thakur, stated that it is also possible that the pipe which has been shown to be left rt open at the lintel of the petitioner, might have been uprooted by the petitioner to gain sympathy of the Court as has also come in the statement of respondent. He also invited attention of the Court to the complaint filed under Order 21 Rule 32 CPC, wherein there is no whisper with regard to laying down the pipes, if any, in terms of the impugned judgment passed by the learned lower Appellate Court, rather it has been stated that till date no action whatsoever was taken by the present respondent to comply with the direction passed by the learned lower Appellate Court.
20. Mr.Nimish Gupta, learned counsel stated that the story put forth by the respondent in his statement that the pipes have been uprooted by the petitioner is totally contrary to the record, as there is no whisper with regard to the same in the reply filed by the respondent to the present petition. Mr. ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...13...
Gupta stated that there are no specific averments with regard to the laying of pipes and, as such, respondent have no reason .
to state that pipes have been uprooted by the present petitioner.
21. Mr. Thakur, also submitted that if for the sake of arguments, it is presumed that the pipes have been left open at the lintel level of the shop of the petitioner, perusal of the of judgment passed by learned lower Appellate Court nowhere suggest that there was any direction to him to connect the rt same to the drain of the PWD because entire case of the petitioner before the Courts below was that the respondent may be restrained from discharging dirty and filthy water over the lintel of the house of the petitioner.
22. Mr. Thakur, further stated that his client has no objection in case petitioner himself gets that pipe connected to PWD drain, which as per version of petitioner is left open at the level of the lintel of his house.
23. Admittedly, perusal of the application filed under Order 21 Rule 32 CPC, nowhere suggest that there is any whisper with regard to laying of the pipes, which fact otherwise emerges from the record available on the file.
24. Admittedly, after seeing the photographs, one thing clearly emerge that the pipe has been left open at the lintel of the shop of the petitioner and the same has not been ::: Downloaded on - 15/04/2017 20:22:46 :::HCHP ...14...
connected to the drain constructed by the PWD. But in totality of the facts and circumstances coupled with the statements .
available on record, this Court see no reason to conclude that the order passed by leaned trial Court on 23.4.2009 is perverse and illegal, rather same is based upon correct appreciation of evidence available on record. Hence, this Court sees no reason to interfere with the impugned order passed by of the learned trial Court.
The present petitioner is dismissed, so also rt pending application(s), if any.
(Sandeep Sharma )
May 17, 2016 Judge.
(shankar)
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